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United States Government Accountability Office:
GAO:
Testimony:
Before the Subcommittee on Oversight of Government Management, the
Federal Workforce, and the District of Columbia, Committee on Homeland
Security and Governmental Affairs, United States Senate:
For Release on Delivery:
Expected at 2:00 p.m. EDT:
Tuesday, July 26, 2011:
Federal Workers' Compensation:
Questions to Consider in Changing Benefits for Older Beneficiaries:
Statement of Andrew Sherrill, Director:
Education, Workforce, and Income Security Issues:
GAO-11-854T:
Chairman Akaka, Ranking Member Johnson and Members of the Subcommittee:
I am pleased to be here today to comment on issues related to possible
changes to the Federal Employees' Compensation Act (FECA) program, a
topic that we have reported on in the past. At the end of chargeback
year 2010, the FECA program, administered by the Department of Labor
(Labor) had paid more than $1.88 billion in wage-loss compensation,
impairment, and death benefits, and another $898.1 million for medical
and rehabilitation services and supplies.[Footnote 1] Currently, FECA
benefits are paid to federal employees who are unable to work because
of injuries sustained while performing their federal duties, including
those who are at or older than retirement age. Concerns have been
raised that federal employees on FECA receive benefits that could be
more generous than under the traditional federal retirement system and
that the program may have unintended incentives for beneficiaries to
remain on the FECA program beyond the traditional retirement age. Over
the past 30 years, there have been various proposals to change the
FECA program to address this concern. Recent policy proposals to
change the way FECA is administered for older beneficiaries share
characteristics with past proposals we have discussed in prior work.
In August 1996, we reported on the issues associated with changing
FECA benefits for older beneficiaries.[Footnote 2] Because FECA's
benefit structure has not been significantly amended in more than 35
years, the policy questions raised in our 1996 report are still
relevant and important today.
My statement today will focus on (1) previous proposals for changing
FECA benefits for older beneficiaries and (2) questions and associated
issues that merit consideration in crafting legislation to change
benefits for older beneficiaries. This statement is drawn primarily
from our 1996 report in which we solicited views from selected federal
agencies and employee groups to identify questions and associated
issues with crafting benefit changes. For that report, we also
reviewed relevant laws and analyzed previous studies and legislative
proposals that would have changed benefits for older FECA
beneficiaries. For purposes of this testimony, we did not conduct a
legal analysis to update the results of our prior work, but instead
relied upon secondary sources such as the Congressional Research
Service (CRS). The work on which this testimony was based was
conducted in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
In summary, we have reported that the perception that many retirement-
age beneficiaries were receiving more generous benefits on FECA had
generated two alternative proposals to change benefits once
beneficiaries reach the age at which retirement typically occurs: (1)
converting FECA benefits to retirement benefits and, (2) changing FECA
wage-loss benefits by establishing a new FECA annuity. We also
discussed a number of issues to be considered in crafting legislation
to change benefits for older beneficiaries. Going forward, Congress
may wish to consider the following questions in assessing current
proposals for change: (1) How would benefits be computed? (2) Which
beneficiaries would be affected? (3) What criteria, such as age or
retirement eligibility, would initiate changed benefits? (4) How would
other benefits, such as FECA medical and survivor benefits, be treated
and administered? (5) How would benefits, particularly retirement
benefits, be funded?
Background:
FECA:
FECA is administered by Labor's Office of Workers' Compensation
Programs (OWCP) and currently covers more than 2.7 million civilian
federal employees from more than 70 different agencies. FECA benefits
are paid to federal employees who are unable to work because of
injuries sustained while performing their federal duties. Under FECA,
workers' compensation benefits are authorized for employees who suffer
temporary or permanent disabilities resulting from work-related
injuries or diseases. FECA benefits include payments for (1) loss of
wages when employees cannot work because of work-related disabilities
due to traumatic injuries or occupational diseases; (2) schedule
awards for loss of, or loss of use of, a body part or function; (3)
vocational rehabilitation; (4) death benefits for survivors; (5)
burial allowances; and (6) medical care for injured workers. Wage-loss
benefits for eligible workers with temporary or permanent total
disabilities are generally equal to either 66-2/3 percent of salary
for a worker with no spouse or dependent, or 75 percent of salary for
a worker with a spouse or dependent. Wage-loss benefits can be reduced
based on employees' wage-earning capacities when they are capable of
working again. OWCP provides wage-loss compensation until claimants
can return to work in either their original positions or other
suitable positions that meet medical work restrictions.[Footnote 3]
Each year, most federal agencies reimburse OWCP for wage-loss
compensation payments made to their employees from their annual
appropriations. If claimants return to work but do not receive wages
equal to that of their prior positions--such as claimants who return
to work part-time--FECA benefits cover the difference between their
current and previous salaries.[Footnote 4] Currently, there are no
time or age limits placed on the receipt of FECA benefits.
With the passage of the Federal Employees' Compensation Act of 1916,
members of Congress raised concerns about levels of benefits and
potential costs of establishing a program for injured federal
employees.[Footnote 5] As Congress debated the Act's provisions in
1916 and again in 1923, some congressional members were concerned that
a broad interpretation threatened to make the workers' compensation
program, in effect, a general pension. The 1916 Act granted benefits
to federal workers for work-related injuries. These benefits were not
necessarily granted for a lifetime; they could be suspended or
terminated under certain conditions. Nevertheless, the Act placed no
age or time limitations on injured workers' receipt of wage
compensation. The Act did contain a provision allowing benefits to be
reduced for older beneficiaries. The provision stated that
compensation benefits could be adjusted when the wage-earning capacity
of the disabled employee would probably have decreased on account of
old age, irrespective of the injury.
While the 1916 Act did not specify the age at which compensation
benefits could be reduced, the 1949 FECA amendments established 70 as
the age at which a review could occur to determine if a reduction were
warranted.[Footnote 6] In 1974, Congress again eliminated the age
provision.[Footnote 7]
Federal Retirement Systems:
Typically, federal workers participate in one of two retirement
systems which are administered by the Office of Personnel Management
(OPM): the Civil Service Retirement System (CSRS), or the Federal
Employees' Retirement System (FERS). Most civilian federal employees
who were hired before 1984 are covered by CSRS. Under CSRS, employees
generally do not pay Social Security taxes or earn Social Security
benefits. Federal employees first hired in 1984 or later are covered
by FERS. All federal employees who are enrolled in FERS pay Social
Security taxes and earn Social Security benefits. Federal employees
enrolled in either CSRS or FERS also may contribute to the Thrift
Savings Plan (TSP); however, only employees enrolled in FERS are
eligible for employer matching contributions to the TSP.
Under both CSRS and FERS, the date of an employee's eligibility to
retire with an annuity depends on his or her age and years of service.
The amount of the retirement annuity is determined by three factors:
the number of years of service, the accrual rate at which benefits are
earned for each year of service, and the salary base to which the
accrual rate is applied.[Footnote 8] In both CSRS and FERS, the salary
base is the average of the highest three consecutive years of basic
pay. This is often called "high-3" pay.
According to CRS, an injured employee cannot contribute to Social
Security or to the TSP while receiving workers' compensation because
Social Security taxes and TSP contributions must be paid from
earnings, and workers' compensation payments are not classified as
earnings under either the Social Security Act or the Internal Revenue
Code. As a result, the employee's future retirement income from Social
Security and the TSP may be reduced. Legislation passed in 2003
increased the FERS basic annuity from 1 percent of the individual's
high-3 average pay to 2 percent of high-3 average pay while an
individual receives workers' compensation, which would help replace
income that may have been lost from lower Social Security benefits and
reduced income from TSP.[Footnote 9]
Proposals to Change Benefits for Older Beneficiaries:
Concerns that beneficiaries remain in the FECA program past retirement
age have led to several proposals to change the program. Under current
rules, an age-eligible employee with 30 years of service covered by
FERS could accrue pension benefits that are 30 percent of their high-3
average pay and under CSRS could accrue almost 60 percent of their
high-3 average pay. Under both systems benefits can be taxed.[Footnote
10] By contrast, FECA beneficiaries can receive up to 75 percent of
their preinjury income, tax-free, if they have dependents and 66-2/3
percent without dependents. Because returning to work could mean
giving up a FECA benefit for a reduced pension amount, concerns have
been raised by some that the program may provide incentives for
beneficiaries to continue on the program beyond retirement age.
In 1996, we reported on two alternative proposals to change FECA
benefits once beneficiaries reach the age at which retirement
typically occurs: (1) converting FECA benefits to retirement benefits,
and (2) changing FECA wage-loss benefits to a newly established FECA
annuity.
The first proposal would convert FECA benefits for workers who are
injured or become ill to regular federal employee retirement benefits
at retirement age. In 1981, the Reagan administration proposed
comprehensive FECA reform, including a provision to convert FECA
benefits to retirement benefits at age 65. The proposal included
certain employee protections, one of which was calculating retirement
benefits on the basis of the employee's pay at time of injury (with
adjustments for regular federal pay increases). According to
proponents, this change would improve agencies' operations because
their discretionary budgets would be decreased by FECA costs, and, by
reducing caseload, it would allow Labor to better manage new and
existing cases for younger injured workers. For example, a bill
recently introduced in Congress includes a similar provision,
requiring FECA recipients to retire upon reaching retirement age as
defined by the Social Security Act.[Footnote 11]
The second proposal, based on proposals that several agencies
developed in the early 1990s, would convert FECA wage-loss
compensation benefits to a FECA annuity benefit. These agency
proposals would have reduced FECA benefits by a set percentage two
years after beneficiaries reached civil service retirement
eligibility. Proponents of this alternative noted that changing to a
FECA annuity would be simpler than converting FECA beneficiaries to
the retirement system, would result in consistent benefits, and would
allow benefits to remain tax-free. Proponents also argued that a FECA
annuity would keep the changed benefit within the FECA program,
thereby avoiding complexities associated with converting FECA benefits
under CSRS and FERS. For example, converting to retirement benefits
could be difficult for some employees who currently are not
participating in a federal retirement plan. Also, funding future
retirement benefits could be a problem if the FECA recipient has not
been making retirement contributions. Labor recently suggested a
change to the FECA program that would reduce wage-loss benefits for
Social Security retirement-aged recipients to 50 percent of their
gross salary at the date of injury, but would still be tax-free.
[Footnote 12] Labor's proposal would still keep the changed benefit
within the FECA program.
In our 1996 report, however, we identified a number of issues with
both alternative proposals. For example, some experts and other
stakeholders we interviewed noted that age discrimination posed a
possible legal challenge and that some provisions in the law would
need to be addressed with new statutory language.[Footnote 13] Others
noted that benefit reductions would cause economic hardships for older
beneficiaries. Some noted that without the protections of the workers'
compensation program, injured employees who have few years of service
or are ineligible for retirement might suffer large reductions in
benefits. Moreover, opponents to change also viewed reduced benefits
as breaking the workers' compensation promise. Another concern was
that agencies' anticipation of reduced costs for workers' compensation
could result in fewer incentives to manage claims or to develop safer
working environments.
Questions and Issues to Consider if Crafting FECA Changes:
We also discussed in our 1996 report a number of issues that merit
consideration in crafting legislation to change benefits for older
beneficiaries. Going forward, Congress may wish to consider the
following questions as it assesses and considers current reform
proposals: (1) How would benefits be computed? (2) Which beneficiaries
would be affected? (3) What criteria, such as age or retirement
eligibility, would initiate changed benefits? (4) How would other
benefits, such as FECA medical and survivor benefits, be treated and
administered? (5) How would benefits, particularly retirement
benefits, be funded?
How Would Benefits Be Computed?
The retirement conversion alternative raises complex issues, arising
in part from the fact that conversion could result in varying
retirement benefits, depending on conversion provisions, retirement
systems, and individual circumstances. A key issue is whether or not
benefits would be adjusted. The unadjusted option would allow for
retirement benefits as provided by current law. The adjusted option
would typically ensure that time on the FECA rolls was treated as if
the beneficiary had continued to work. This adjustment could (1)
credit time on FECA for years of service or (2) increase the salary
base (for example, increasing salary from the time of injury by either
an index of wage increases or inflation, assigning the current pay of
the position, or providing for merit increases and possible promotions
missed due to the injury).
Determining the FECA annuity would require deciding what percentage of
FECA benefits the annuity would represent. Under previous proposals
benefits would be two-thirds of the previous FECA compensation
benefits. Provisions to adjust calculations for certain categories of
beneficiaries also have been proposed. Under previous proposals,
partially disabled individuals receiving reduced compensation would
receive the lesser of the FECA annuity or the current reduced benefit.
FECA annuity computations could also be devised to achieve certain
benchmarks. For example, the formula for a FECA annuity could be
designed to approximate a taxable retirement annuity. One issue
concerning a FECA annuity is whether it would be permanent once set,
or whether it would be subject to adjustments based on continuing OWCP
reviews of the beneficiary's workers' compensation claim.
Which Beneficiaries Would Be Affected?
Currently most federal employees are covered by FERS, but conversion
proposals might have to consider differences between FERS and CSRS
participants, and participants in any specialized retirement systems.
[Footnote 14] Other groups that might be uniquely affected include
injured workers who are not eligible for federal retirement benefits,
individuals eligible for retirement conversion benefits, but not
vested; and individuals who are partially disabled FECA recipients but
active federal employees. With regard to vesting, those who have
insufficient years of service to be vested might be given credit for
time on the FECA rolls until vested. There is also the question of
whether changes will focus on current or future beneficiaries.
Exempting current beneficiaries delays receipt of full savings from
FECA cost reductions to the future. One option might be a transition
period for current beneficiaries. For example, current beneficiaries
could be given notice that their benefits would be changed after a
certain number of years.
What Criteria Would Initiate Changed Benefits?
Past proposals have used either age or retirement eligibility as the
primary criterion for changing benefits. If retirement eligibility is
used, consideration must be given to establishing eligibility for
those who might otherwise not become retirement eligible. This would
be true for either the retirement conversion or the annuity option. At
least for purposes of initiating the changed benefit, time on the FECA
rolls might be treated as if it counted for service time toward
retirement eligibility. Deciding on the criteria that would initiate
change in benefits might require developing benchmarks. For example,
if age were the criteria, it might be benchmarked against the average
age of retirement for federal employees, or the average age of
retirement for all employees. Another question is whether to use
secondary criteria to delay changed benefits in certain cases. The
amount of time one has received FECA benefits is one possible example
of secondary criteria. Secondary criteria might prove important in
cases where an older, injured worker may face retirement under the
retirement conversion option even when recovery and return to work is
almost assured.
How Would Other Benefits, Such As FECA Medical Benefits Or Survivor
Benefits, Be Treated and Administered?
In addition to changing FECA compensation benefits, consideration
should be given to whether to change other FECA benefits, such as
medical benefits or survivor benefits. For example, the 1981 Reagan
administration proposal would have ended survivor benefits under FECA
for those beneficiaries whose benefits were converted to the
retirement system. Another issue to consider is who will administer
benefits if program changes shift responsibilities--OPM administers
retirement annuity benefits for federal employees, and Labor currently
administers FECA benefits. Although it may be advantageous to
consolidate case management in one agency, such as OPM, if the
retirement conversion alternative were selected, the agency chosen to
manage the case might have to develop an expertise that it does not
currently possess. For example, OPM might have to develop expertise in
medical fee schedules to control workers' compensation medical costs.
How Would Benefits, Particularly Retirement Benefits, Be Funded?
For the retirement conversion alternative, another issue is the
funding of any retirement benefit shortfall. Currently, agencies and
individuals do not make retirement contributions if an individual
receives FECA benefits; thus, if retirement benefits exceed those for
which contributions have been made, retirement funding shortfalls
would occur. Retirement fund shortfalls can be funded through payments
made by agencies at the time of conversion or prior to conversion.
First, lump-sum payment could be made by agencies at the time of the
conversion. This option has been criticized because the start-up cost
was considered too high. Second, shortfalls could be covered on a pay-
as-you-go basis after conversion. In this approach, agencies might
make annual payments to cover the shortfall resulting from the
conversions. Third, agencies' and employees' contributions to the
retirement fund could continue before conversion, preventing
shortfalls at conversion. Proposals for the FECA annuity alternative
typically keep funding under the current FECA chargeback system. This
is an annual pay-as-you-go system with agencies paying for the
previous year's FECA costs.
In total, these five questions provide a framework for considering
proposals to change the program.
Concluding Remarks:
In conclusion, FECA continues to play a vital role in providing
compensation to federal employees who are unable to work because of
injuries sustained while performing their duties. However, continued
concerns that the program provides incentives for beneficiaries to
remain on the program at, and beyond, retirement age have led to calls
for the program to be reformed. Although FECA's basic structure has
not been significantly amended for many years, there continues to be
interest in reforming the program. Proposals to change benefits for
older beneficiaries raise a number of important issues, with
implications for both beneficiaries and federal agencies. These
implications warrant careful attention to outcomes that could result
from any changes.
Mr. Chairman, this concludes my prepared statement. I would be pleased
to respond to any questions that you or other members of the committee
may have at this time.
GAO Contact and Staff Acknowledgments:
For further information about this testimony, please contact Andrew
Sherrill at (202) 512-7215 or sherrilla@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this testimony. In addition to the individual
named above, key contributors to this testimony include Patrick
Dibattista, H. Brandon Haller, Michelle Bracy, Tonnyé Conner-White,
James Rebbe, Kathleen van Gelder, Walter Vance, and Matthew Saradjian.
[End of section]
Related GAO Products:
Federal Workers' Compensation: Issues Associated with Changing
Benefits for Older Beneficiaries. [hyperlink,
http://www.gao.gov/products/GAO-11-655T]. Washington, D.C.: May 12,
2011.
Federal Workers' Compensation: Better Data and Management Strategies
Would Strengthen Efforts to Prevent and Address Improper Payments.
[hyperlink, http://www.gao.gov/products/GAO-08-284]. Washington, D.C.:
February 26, 2008.
Postal Service Employee Workers' Compensation Claims Not Always
Processed Timely, but Problems Hamper Complete Measurement.
[hyperlink, http://www.gao.gov/products/GAO-03-158R]. Washington,
D.C.: December 20, 2002.
Oversight of the Management of the Office of Workers' Compensation
Programs: Are the Complaints Justified. [hyperlink,
http://www.gao.gov/products/GAO-02-964R]. Washington, D.C.: July 19,
2002.
U.S. Postal Service: Workers' Compensation Benefits for Postal
Employees. [hyperlink, http://www.gao.gov/products/GAO-02-729T].
Washington, D.C.: May 9, 2002.
Office of Workers' Compensation Programs: Further Actions Are Needed
to Improve Claims Review. [hyperlink,
http://www.gao.gov/products/GAO-02-725T]. Washington, D.C.: May 9,
2002.
Federal Employees' Compensation Act: Percentages of Take-Home Pay
Replaced by Compensation Benefits. [hyperlink,
http://www.gao.gov/products/GGD-98-174]. Washington, D.C.: August 17,
1998.
Federal Employees' Compensation Act: Issues Associated With Changing
Benefits for Older Beneficiaries. [hyperlink,
http://www.gao.gov/products/GGD-96-138BR]. Washington, D.C.: August
14, 1996.
Workers' Compensation: Selected Comparisons of Federal and State Laws.
[hyperlink, http://www.gao.gov/products/GGD-96-76]. Washington, D.C.:
April 3, 1996.
Federal Employees' Compensation Act: Redefining Continuation of Pay
Could Result in Additional Refunds to the Government. [hyperlink,
http://www.gao.gov/products/GGD-95-135]. June 8, 1995.
[End of section]
Footnotes:
[1] FECA benefits are paid out of the Employees' Compensation Fund and
most are charged back to the employee's agency. Labor's chargeback
year for FECA agency billing purposes ends June 30, 2010.
[2] GAO, Federal Employees' Compensation Act: Issues Associated With
Changing Benefits for Older Beneficiaries, [hyperlink,
http://www.gao.gov/products/GGD-96-138BR] (Washington, D.C.: Aug. 14,
1996).
[3] Employees eligible for FECA benefits could also be eligible for
retirement disability benefits from the Office of Personnel Management
or Social Security Disability Insurance benefits from the Social
Security Administration. Depending on which benefits employees are
entitled to, employees might have to make an election between them. In
many cases in which individuals receive benefits from different
programs simultaneously, one benefit would likely be offset against
the other to some extent.
[4] The maximum monthly FECA compensation payment cannot exceed 75
percent of the basic monthly pay for a GS-15, step 10 employee ($129,
517 per year as of Jan. 2, 2011). In general, OWCP continues to pay
claimants the difference between their current salary and the salary
they were earning at the time of their injury for as long as this
difference exists and their medical work restrictions remains the
same. (FECA benefits are indexed to the cost of living.) OWCP would
not continue to pay this difference for claimants who quit their job
without good cause (for example, if they quit because they did not
like their work hours).
[5] 39 Stat. 742.
[6] 63 Stat. 854.
[7] Pub. L. No. 93-416, § 8, 88 Stat. 1143. According to Senate Report
93-1081, the Committee on Labor and Public Welfare stated that (1) the
provision requiring the review of compensation was an unnecessary
burden on both the injured employees and the Secretary of Labor (who
had the authority to conduct the review); (2) age 70 had no bearing on
one's entitlement to benefits; and (3) such a provision was
discriminatory. FECA currently does not include a provision to change
benefits based on retirement age.
[8] Under CSRS, a worker with at least 30 years of service can retire
at the age of 55; a worker with at least 20 years of service can
retire at the age of 60; and a worker with 5 or more years of service
can retire at the age of 62. The FERS minimum retirement age for an
employee with 30 or more years of service is 55 for workers born
before 1948. A worker who has reached the minimum retirement age and
has completed at least 30 years of service can retire with an
immediate, unreduced annuity. A worker with 20 or more years of
service can retire with an unreduced annuity at age 60, and a worker
with at least 5 years of service can retire at age 62 with an
unreduced annuity.
[9] Pub. L. No. 108-92, 117 Stat. 1160 (2003).
[10] The replacement rate for a federal worker who retires with 30
years of service under CSRS is 56.25 percent. FERS accrual rates are
lower than the accrual rates under CSRS because employees under FERS
pay Social Security payroll taxes and earn Social Security retirement
benefits. Estimating replacement rates under FERS is complicated by
the fact that income from two of its components--Social Security and
the TSP--will vary depending on the individual's work history,
contributions to the TSP, and the investment performance of his or her
TSP account.
[11] Federal Employees' Compensation Reform Act of 2011, S. 261, 112TH
Cong. (2011).
[12] According to CRS, an injured employee cannot contribute to Social
Security or to the TSP while receiving workers' compensation because
Social Security taxes and TSP contributions must be paid from
earnings, and workers' compensation payments are not classified as
earnings under either the Social Security Act or the Internal Revenue
Code.
[13] Some argued that changing benefits for older beneficiaries
violates protections against age discrimination contained in federal
law by forcing them into accepting retirement benefits or a reduced
annuity at a certain age.
[14] One conversion decision concerns whether to exempt injured
workers who are ineligible for federal retirement benefits. Ineligible
workers include, for instance, those without 5 years of federal
service under CSRS, those who have withdrawn retirement contributions,
temporary workers, and state and local police covered under special
FECA provisions.
[End of section]
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